Hamlet v. Johnson , 26 Ala. 557 ( 1855 )

CHILTON, C. J.

—By the 12th item of this will, the whole of the testator’s property remaining after the death or marriage of his wife, and not specifically willed away to any of his children, is required to be sold by his executors, and the proceeds to be equally divided among all the children of the testator. The bequest to Richard of the two slaves lapsed by his death before the will took effect; and the question is, whether these slaves fall into the residuum created by the 12th item, or whether the testator is to be regarded as having died intestate as to them.

It seems to be well settled, and we have so expressly declared the law to be, that where one of several residuary legatees dies before the testator, and the residuary estate given to them is to be held by them in common, his portion does not survive to his co-legatees, but goes to the testator's next of kin according to the statute of distribution.—See Bendall’s Distributees v. Bendall’s Adm’r, 24 Ala. 309, and authorities there cited. The case before us falls within this category. The residuary legatees, who are the testator's children, hold in common. With us there ca^be no joint estate technically, for the right of survivorship is taken away by our statute, existing long before the will was made; and the deceased child, Richard, is one of the persons intended by the testator, when he prepared his will, to take as one of the residuary legatees. According, then, to the settled rule, his interest, having lapsed by his death before the death of the testator, remains to be 'distributed as in case of intestacy.

We think it is very clear, that in order to give the widow a life estate by implication, or an estate during her widowhood, the will must create ah interest in the residuary legatees in the remainder. In other words, if the children, who are to take the proceeds of the sale of all the property not specifically bequeathed, to be derived from a sale of such property required by the will to be made upon the death or marriage of the widow, can take no interest in these slaves bequeathed to Richard, then there is no life estate, or estate pendente viduitate, in Mrs. Hamlet. For the particular estate, if it results at all, attaches to or grows out of the bequest of the property in remainder to the children; and if the principal estate is not created by the will, no implication raising the' particular or immediate interest can be indulged — -the principal failing, that which is but the incident must fail.

2. The only remaining question is, whether the court proceeded regularly in ordering a sale of the slaves for the purpose of making distribution.

It is said, the distribution is not to be made until the death or marriage of the widow, and that the sale and distribution of the proceeds .of these slaves are premature. This objection, however, presupposes that the slaves, so sold, pass under the will, and are therefore to be governed by its provisions; whereas, we have shown, that as to this property, the testator must be regarded as dying intestate, and consequently the court must dispose of them as though no will had been made.

It does not appear when the petition in this case was filed. The citation to the widow issued the 20th January, 1853. Assuming that the petition was filed on that day, the possession of the widow must be considered as commencing from the time the will was admitted to probate, namely, the 5th of August, 1847; for, until that time, there was no one who could consent to the legacy of the slaves in question, conceding that they passed to the rvidow under the 12th item of the will. Claiming, as she does, under the will, her rightful possession could only accrue upon proof of the will and qualifying as executrix; so that her possession could not have given her a title before the petition was filed, (six years not having intervened between the probate and the application for distribution,) oven conceding that she could set up an adverse claim to the rightful distributees, which we do not decide.

It is clear that an equql distribution could not have been made of these slaves without a sale. There are six distributees (children) and a widow, among whom the proceeds are to be divided, and but six slaves, including those remaining with the executrix and not mentioned in the petition. The Probate Court .might well, therefore, have ordered the sale, as six negroes could not be divided into seven shares. There was no need that this fact should have been certified to him by commissioners appointed to make the distribution.

Let the decree be affirmed.